IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40583

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

IGNACIO DAMIAN OCHOA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:09-CR-1125-1

Before JONES, Chief Judge and JOLLY and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Ignacio Damian-Ochoa (Damian) appeals the non-Guidelines sentence

imposed following his guilty-plea conviction for illegal reentry in violation of

18 U.S.C. § 1326. Damian argues that his sentence is procedurally and

substantively unreasonable because the district court did not consider whether

an upward departure under the Guidelines was appropriate before imposing an

upward variance, the district court did not adequately explain the extent of the

United States Court of Appeals

Fifth Circuit

F I L E D

May 31, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-40583

upward variance, and the sentence was greater than necessary to achieve the

goals of sentencing.

Sentences, whether inside or outside the advisory guidelines range, are

reviewed under an abuse of discretion standard for procedural error and

substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).

Damian’s argument that the district court should have first considered whether

an upward departure under the Guidelines was appropriate before imposing an

upward variance is unavailing. A district court is not required to “consult or

comply” with § 4A1.3 of the Guidelines prior to the consideration or imposition

of a non-guidelines sentence. United States v. Mejia-Huerta, 480 F.3d 713, 723

& n.43 (5th Cir. 2007).

As for Damian’s contention that the district court failed to explain the

extent of the imposed variance, the record belies this assertion. The district

court did state reasons for its upward variance – the sentencing goal of

deterrence; the nature, circumstances or severity of the offense; the history and

characteristics of the defendant; and the need to promote respect for the law.

The district court specifically voiced concern about the 32 times Damian illegally

reentered the United States.

Lastly, Damian’s non-Guidelines sentence of 32 months of imprisonment,

a 16-month variance from the top of his 10 to 16 month advisory guidelines

sentencing range, is substantially reasonable. Damian’s sentence is supported

by numerous § 3553(a) factors and is less than the statutorily authorized

sentence of 10 years of imprisonment set forth in the statute of conviction. See

United States v. Williams, 517 F.3d 801, 812-13 (5th Cir. 2008). Also, we have

upheld variances greater than this variance. See United States v. Brantley,

537 F.3d 347, 348-50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433,

441-42 (5th Cir. 2006); United States v. Smith, 417 F.3d 483, 492-93 & n.40 (5th

Cir. 2005). Accordingly, in light of the record and the deference that this court

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affords to the district court’s findings, the district court did not abuse its

discretion when it imposed a non-Guidelines sentence.

The judgment of the district court is AFFIRMED.

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